Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

American Indian Education Legacy Cited in Bitter Custody Case

The nation's legacy of removing American Indian children from their families and sending them to federal boarding schools to "civilize" them is part of the backdrop for a wrenching child custody case heard by the U.S. Supreme Court on Tuesday.

The prevalence of practices such as placing Indian children in boarding schools, which continued well into the 20th Century, or putting them up for adoption by white parents was the basis for the Indian Child Welfare Act, a 1978 federal law that is at the center of the custody dispute over a 3½-year-old child who is part Cherokee.

The child, identified in court papers as "Baby Girl," has lived since the end of 2011 in Oklahoma with her biological father, who is also Cherokee and invoked the ICWA after the mother put the child up for adoption. A South Carolina couple had raised the girl for more than a year, pending the finalization of adoption proceedings, until that state's courts ruled that the father's parental rights could not be terminated under the federal law and that awarding custody to him would be in the child's best interest.

What unfolded in the April 16 oral arguments in Adoptive Couple v. Baby Girl (Case No. 12-399) is a demonstration of why the Supreme Court prefers to steer clear of most family law disputes, a province of law it generally leaves to the states.

"Our domestic-relations judges all by themselves every day have these difficult problems," Justice Anthony M. Kennedy observed after some of his colleagues had essentially begun to bicker over the details of the case. "If we could appoint King Solomon, who was the first domestic-relations judge, as special master, we could do it. But we can't do it."

A group of professors of American Indian law filed a friend-of-the-court brief on the father's side urging the justices to take account of the historical backdrop to the Indian Child Welfare Act.

For much of the 19th Century and well into the 20th Century, the professors say, Indians were viewed as unfit to raise their children, in part because in many tribes, child-rearing was not done exclusively in nuclear families but was spread around among multiple tribe members. For many years, Indian children were sent to boarding schools meant to assimilate them into mainstream American society.

One federal Indian commissioner wrote in the late 1800s, the brief says, that the humanitarian thing to do to aid Indian children was "for the strong arm of the nation to reach out, take them in their infancy and place them in its fostering schools, surrounding them with an atmosphere of civilization ... instead of allowing them to grow up as barbarians and savages."

The federal government began operating such boarding schools in the 1870s, the brief says, and by 1905 more than 20,000 Indian children were enrolled.

When boarding schools fell out of favor, the brief says, the federal government turned to adoption as an alternative means of assimilation, the brief says.

The Indian Child Welfare Act was enacted to put a stop to such practices, the professors argue, and it was meant to be invoked by all Indian parents, regardless of whether they had custody of their children.

"Congress enacted ICWA after hearing considerable evidence that the wholesale adoption of Indian children posed a threat to the very existence of Indian tribes and Indian culture."

In the Supreme Court today, some of the legacy was debated, as were concerns that the federal statute imposes a form a racial classification.

Lisa S. Blatt, the lawyer representing the would-be South Carolina adoptive couple, told the justices that a decision in favor of the biological father would relegate adoptive parents "to the back of the bus."

"And you're basically relegating the child to a piece of property with a sign that says, 'Indian. Keep Off. Do Not Disturb,'" she said.

Paul D. Clement, a lawyer representing the child's state court-appointed guardian in South Carolina and also supporting the adoptive parents, said that almost as soon as ICWA was adopted the federal Department of Justice recognized there were potential constitutional problems with its racial classification of Indians.

"That's what makes this child and Indian child here, it's biology," Clement said. "It's biology combined with the fact that the [Cherokee] tribe, based on a racial classification, thinks that somebody with ... 1 percent Indian blood is enough to make them a tribal member."

Chief Justice John G. Roberts Jr. was troubled by the law's definitions of Indian. "Is it one drop of blood that triggers all these extraordinary rights?" he asked the lawyer for the father.

Roberts and Justice Antonin Scalia were often at odds during the argument, with the chief justice pointing out that the father had not supported the mother during pregnancy or at the time of the child's birth. (The father had agreed to give up his rights until he learned the child was being put up for adoption.) Scalia retorted that the father had offered to marry the mother but was rebuffed.

Scalia said that he knew "a lot of kids that would be better off with different parents," but no state routinely goes around applying a "best-interests-of-the-child" standard over whether parental rights should be terminated.

Charles A. Rothfeld, the lawyer for the father, said the South Carolina courts "found that this father, far from being an unfit father, was a fit, loving, devoted father who had created a safe, satisfactory, and loving environment for the child." The only reason ICWA needed to be invoked was to give the father the opportunity to object to the adoption when he did.

The Obama administration also backs the father, with Deputy Solicitor General Edwin A. Kneedler telling the justices that ICWA is "a classic implementation of Congress's plenary responsibility in the federal trust and guardianship for Indians, and nothing could be more at the core of tribal self-determination and tribal survival than the determination of tribal membership and the care about what happens to Indian children."

As in other contentious custody disputes, the question of the child's schooling came up in this case, though not at oral arguments. Lawyers for the father argue in their brief that the child's guardian ad litem had a bias for the girl to remain with the adoptive parents. In one report, the guardian reported that she had known the husband and wife and that they were "a well-educated couple with a beautiful home, [who] could afford to send Baby Girl to any private school that they chose, and when she was older, to any college she wanted."

In a reply brief for the adoptive parents responding to related points, Blatt says that while the U.S. Constitution does not guarantee mothers their children will have "access to private schools," it does give mothers "the right to choose who may associate with their children and which school will educate them."

A decision in the case is expected by late June.

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